Flight Training Adelaide Pty Ltd T/A Flight Training Adelaide
[2018] FWCA 6498
•23 OCTOBER 2018
| [2018] FWCA 6498 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Flight Training Adelaide Pty Ltd T/A Flight Training Adelaide
(AG2018/1441)
FLIGHT TRAINING ADELAIDE ENGINEERING ENTERPRISE AGREEMENT 2017
Airline operations | |
COMMISSIONER HAMPTON | ADELAIDE, 23 OCTOBER 2018 |
Application for approval of the Flight Training Adelaide Engineering Enterprise Agreement 2017.
[1] An application has been made for approval of an enterprise agreement known as the Flight Training Adelaide Engineering Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Flight Training Adelaide Pty Ltd T/A Flight Training Adelaide (FTA). The Agreement is a single-enterprise agreement.
[2] On receipt of the application, the Commission raised a number of issues with the applicant employer. FTA provided further clarification of the process leading to the making of the Agreement and the parties’ intentions in relation to some of its terms. In this latter regard, the employer also provided formal written undertakings which are appended to the Agreement. These undertaking are responsive to the concerns raised by the Commission as they relate to ss.186 and 187 of the Act. In particular, the undertakings, when considered in the context of the terms of the instrument itself, confirm to my satisfaction that the Agreement meets the Better Off Overall Test of s.193 of the Act and ensure that the instrument will operate in conformity with the National Employment Standards.
[3] On 8 October 2018, the matter was assigned to the Commission as presently constituted to deal with an outstanding matter relating to the coverage of the Agreement. In particular, the material accompanying the application for approval indicated that an employee, a Radio Repair Technician (the Radio Technician), was not part of the coverage of the Agreement. The employer also provided confirmation that that employee was content with their existing arrangements. This potentially raised concerns arising from s.186(3) and (3A) which are in the following terms:
“186 When the FWC must approve an enterprise agreement-general requirements
… …
Requirement that the group of employees covered by the agreement is fairly chosen
(3) The FWC must be satisfied that the group of employees covered by the agreement was fairly chosen.
(3A) If the agreement does not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding whether the group of employees covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.
… …”
[4] The Agreement states that its coverage is as follows:
“2 PARTIES BOUND
This Agreement is binding upon Flight Training Adelaide Pty Ltd and those employees employed by Flight Training Adelaide Pty Ltd in the capacity of Aircraft Engineers and Store persons, namely; Aircraft Maintenance Engineers, Licensed Aircraft Maintenance Engineers, Trades Assistants, Engineering Apprentices and Store persons.”
[5] There are no stated exclusions from that coverage within the Agreement.
[6] On 16 October 2018, I conducted a hearing of the parties to seek clarification about the coverage of the Agreement and related matters. During that hearing, the employer confirmed that:
• The Radio Technician is a Licenced Aircraft Maintenance Engineer (LAME);
• Was considered by the employer to be covered by the relevant modern award (Airline Operations – Ground Staff Award 2010);
• All employees in the workshop, including the Radio Technician, were given the appropriate notices and information required under the Act leading to the vote of employees; and
• The Radio Technician elected not to participate in the ballot.
[7] Given the scope of the Agreement and the nature and qualifications held by the Radio Technician, it is apparent that that employee is covered by the Agreement. That is, although there is an understanding between the parties that the existing more beneficial arrangements for the Radio Technician will continue, he is as a matter of fact covered by the Agreement. The Agreement covers Aircraft Engineers, including LAMEs, and there is no express or implied exclusion of the Radio Technician.
[8] Despite this finding, the stated group of employees to be covered does not include all of the employees of the employer. It fundamentally seeks to cover the workshop and stores operations and not the other parts of the business. As a result, under s.186(3) of the Act I am still required to consider whether the group has been fairly defined having regard to whether it is geographically, operationally or organisationally distinct. Having regard to the nature of the employer’s operations and the scope of the Agreement, I am satisfied that the group is operationally and/or organisationally distinct. Further, I consider that the group of employees covered by the agreement has been objectively defined and fairly chosen.
[9] Amongst other approval requirements, s.180 of the Act requires as follows:
“180 Employees must be given a copy of a proposed enterprise agreement etc.
Pre-approval requirements
(1) Before an employer requests under subsection 181(1) that employees approve a proposed enterprise agreement by voting for the agreement, the employer must comply with the requirements set out in this section.
Employees must be given copy of the agreement etc.
(2) The employer must take all reasonable steps to ensure that:
(a) during the access period for the agreement, the employees (the relevant employees) employed at the time who will be covered by the agreement are given a copy of the following materials:
(i) the written text of the agreement;
(ii) any other material incorporated by reference in the agreement; or
(b) the relevant employees have access, throughout the access period for the agreement, to a copy of those materials.
(3) The employer must take all reasonable steps to notify the relevant employees of the following by the start of the access period for the agreement:
(a) the time and place at which the vote will occur;
(b) the voting method that will be used.
(4) The access period for a proposed enterprise agreement is the 7 day period ending immediately before the start of the voting process referred to in subsection 181(1).
Employees must be given copy of disclosure documents etc.
(4A) If an organisation gives the employer a document under section 179 by the end of the fourth day of the access period for the agreement, the employer must take all reasonable steps to ensure that the relevant employees:
(a) are given a copy of the document as soon as practicable after it was given to the employer; or
(b) are given access to a copy of the document as soon as practicable after it was given to the employer and have access to that copy throughout the remainder of the access period for the agreement.
Note: This subsection is a civil remedy provision (see Part 4-1).
(4B) If the employer is required to prepare a document under section 179A, the employer must take all reasonable steps to ensure that the relevant employees:
(a) are given a copy of the document by the end of the fourth day of the access period for the agreement; or
(b) are given access to a copy of the document by the end of that fourth day and have access to that copy throughout the remainder of the access period for the agreement.
Note: This subsection is a civil remedy provision (see Part 4-1).
(4C) The employer must not knowingly or recklessly make a false or misleading representation in the document that the relevant employees are given a copy of or access to under subsection (4B).
Note: This subsection is a civil remedy provision (see Part 4-1).
Terms of the agreement must be explained to employees etc.
(5) The employer must take all reasonable steps to ensure that:
(a) the terms of the agreement, and the effect of those terms, are explained to the relevant employees; and
(b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.
(6) Without limiting paragraph (5)(b), the following are examples of the kinds of employees whose circumstances and needs are to be taken into account for the purposes of complying with that paragraph:
(a) employees from culturally and linguistically diverse backgrounds;
(b) young employees;
(c) employees who did not have a bargaining representative for the agreement.”
[10] The material before the Commission, including that provided with the application, confirmed general compliance with these requirements. However, given my findings about the actual inclusion of the Radio Technician in the Agreement it was important to consider whether FTA took all reasonable steps to include that employee in the relevant statutory steps. 1 Having raised this aspect with the parties, a Statutory Declaration2 was subsequently provided by the Radio Technician which confirmed the details advanced by the employer during the hearing of this matter. This included that he was provided with all of the relevant notifications, the terms of the Agreement were provided to him, he had those terms explained to him, and was able to vote in the ballot, but chose not to do so given his different arrangements. In the circumstances, I am satisfied that the requirements of s.180 and related provisions were met in relation to this application.
[11] Having regard to additional information now provided to the Commission about the coverage of the employees, the process leading to the Agreement, and certain other matters set out below, I am satisfied that the Agreement should be approved.
[12] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met. Without further dealing with all of those requirements, I find that the process leading to the endorsement of the Agreement by a valid majority of employees who voted, was consistent with the requirements of the Act. This includes that the Notice of Employee Representational Rights was issued at the time that the employer initiated the bargaining; and that all relevant employees were given a genuine opportunity to vote on the agreement having been provided with the requisite information, and advised of the required details. The Agreement was genuinely made.
[13] Further, in relation to the undertakings provided, I note that the views of the bargaining representatives have been sought in relation to those undertakings. 3 The undertakings do not result in substantial changes to the Agreement and no employee will be disadvantaged or suffer financial detriment. As a result, I have accepted the undertakings pursuant to s.190 of the Act, and with the approval of the instrument, the undertakings are taken to be a term of the Agreement.
[14] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 October 2018. The nominal expiry date of the Agreement is 29 October 2020.
COMMISSIONER
1 This was reinforced by the decision of the Full Federal Court in One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77, [112] – [113].
2 Dated 19 October 2018.
3 The bargaining representatives supported the undertakings.
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